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Federal Union Accuses FLRA of 'Unprecedented' Bias Against Labor

"Essentially, the union never prevails" in appeals of disputes between unions and agencies, attorneys argue in federal lawsuit.

A union representing Defense Department education employees claimed in a federal lawsuit that the current board of the agency responsible for adjudicating disputes between federal agencies and labor organizations has a systemic bias against unions.

The Federal Education Association filed a legal challenge earlier this month in the U.S. District Court for the District of Columbia against the Federal Labor Relations Authority’s decision to overturn nine arbitration awards totaling millions in back pay over payroll processing mistakes. The awards were overturned in favor of the Department of Defense Education Activity. 

The union, which represents around 6,000 teachers and support personnel at Defense Department-run schools around the world, claimed a pattern of systemic bias by the FLRA has effectively denied its members their due process rights.

FLRA did not respond to a request for comment. 

The union accused the current Trump-appointed majority of the FLRA board of routinely exceeding its authority in overturning arbitration cases at a rate that is unprecedented in modern memory. The lawsuit compared the current board’s decisions with those over the same period during the George W. Bush and Obama administrations.

In the first 94 cases before the current board, the agency won 83 times, compared to only 10 awards for a union. (The other decision was "an expedited review where the circumstances could not be ascertained.")

“Each [union win] was on insurmountable procedural grounds,” FEA attorneys wrote. “Six times, the agency had missed filing deadlines. One time, the agency had considered an expired letter of reprimand ... One time, the authority had no jurisdiction.”

Looking more closely, in those first 94 cases, the original decision-maker was overruled 59 times, all of which were in favor of the agency involved. Arbitrators were overruled 51 times, and administrative law judges and FLRA regional directors were overruled four times each.

The Federal Education Association accused the current FLRA of vastly overstepping its authority in overturning lower rulings, noting that the agency’s guide to arbitration requires “substantial deference” to arbitrators and administrative law judges.

“Although Congress specifically provided for authority review of arbitration awards, Congress also made clear that the scope of that review is very limited,” the guide states. “Thus, the authority gives arbitrators substantial deference and will set aside or modify their awards only when excepting parties establish that the awards are deficient on one of the specific grounds set forth in [the law].”

By comparison, in the first 94 cases of the FLRA board appointed by President George W. Bush, arbitrators were overruled 11 times—five times in favor of an agency, three times in favor of a union, and with three split decisions. An administrative law judge was overruled once.

And for the same period under the board as constructed by President Obama, arbitrators were overruled 16 times, of which 12 went to the agency and four to the union. Administrative law judges were overruled six times, with two decisions for the agency, two for the union, and two cases were remanded back to the judge.

The Federal Education Association argued that such decisions render the arbitration process meaningless, and could have a chilling effect on the process designed to hear labor-management disputes. Federal unions have already warned that they could act to skip the FLRA and go straight to court with their disputes, citing the Trump administration’s decision not to appoint a general counsel to the agency, effectively blocking unfair labor practice complaints from reaching the full board.

“If the union can never prevail, a prudent union will never go to the expense of arbitration,” attorneys wrote. “If arbitrators know every award for a union will be overruled, prudent arbitrators would never put themselves in the position of accepting the case. If they accept the case, the arbitrators know they will be overturned if they rule for the union.”